STATE ADULT GUARDIANSHIP LEGISLATION:

DIRECTIONS OF REFORM - 2007

Commission on Law and Aging

American Bar Association

In 2007, at least 14 states passed a total of 27 adult guardianship bills -- as compared with 16 bills in eight states passed in 2006. Connecticut * passed a major revision targeting procedures for appointment, limited orders and procedures for appealing probate court decisions. Washington, Arkansas and Nevada passed legislation creating or strengthening an office of public guardianship. Texas ** enacted a wide range of provisions. If you know of additional state adult guardianship legislation enacted in 2007, please contact Erica Wood, ABA Commission on Law and Aging, ericawood@staff.abanet.org, 202/662-8693.

A. Connecticut: Bolstering Procedures for Appointment and Appeal.

The following summary of the new Connecticut guardianship (termed “conservatorship”) law is by Kate McEvoy, JD, Deputy Director, Agency on Aging of South Central Connecticut and Chair, Elder Law Section, Connecticut Bar Association.

Enactment of Public Act 07/116[1], which became effective on October 1, 2007, reflects sweeping changes in Connecticut's guardianship law that update and modernize the state's law consistent with model standards. These amendments reflect a “person-centered” approach that requires courts to evaluate each instant situation on an individually-tailored basis. The most fundamental aspect of the amendments is that they build on prior Connecticut law to require a presumption of limited, rather than plenary, conservatorship.

Conservatorship law in Connecticut has been slow to evolve. Prior to 1998, in all cases in which a court found that a respondent was incapable, it was obligatory that the court appoint a plenary conservator. While amendments in Connecticut law first provided that appointment of a conservator was no longer mandatory where there were alternate existing supports,[2] and later permitted appointment of a conservator on a limited basis,[3] plenary appointments continued to be the norm. This has changed due to the comprehensive amendments that were enacted in the 2007 legislative session. The amendments were initially inspired by the national guardianship Wingspan recommendations and drafted by advocates from Greater Hartford Legal Assistance and the Connecticut Legal Rights Project. With comment from diverse partners, the amendments were finalized and ultimately championed by a workgroup led by Hartford Probate Court Judge Robert Killian, Jr. The amendments provide enhanced guidance on every aspect of the process, from inception through periodic review.

Definition of Incapacity. A key premise of the amendments is that Connecticut's definitions of incapacity have been revised as follows:

the “disabling condition” clause, which describes the individual's mental, emotional or physical condition, has been revised to remove references to such terms as “mental deficiency”, “chronic use of drugs and alcohol” and “confinement”;

a “cognitive functioning” clause, which refers to an individual's ability to make and communicate informed decisions, has been added; and

*the “essential needs” clause, which describes the individual's inability to care for him or herself or to manage his or her affairs, now includes reference to “appropriate assistance” that might help an individual to do so.[4]

Procedural Due Process Protections. The amended law includes enhanced procedural protections that:

require that courts:

establish jurisdiction;

confirm that the person who is the subject of the application has been given the required notice and has been advised of the right to an attorney; and

confirm that the person is either represented or has knowingly waived the right to an attorney;[5]

emphasize the right of a respondent to be notified of [6], to attend and to participate in hearings[7], and to be represented by an attorney of his or her choosing;[8]

outline courts' responsibility to schedule hearings at a place that will facilitate participation by the respondent;[9]

require that all hearings be conducted using the rules of evidence established by the Superior Court, and that all testimony that is offered be given under oath or affirmation;[10]

require that courts record hearings and retain the recordings for use in the event of an appeal; [11] and

Least Restrictive Alternative; Limited Orders. At every stage of a proceeding, courts are required to evaluate whether a respondent's needs are currently being or could be met by a means that is less restrictive than appointment of a conservator. The amended law requires courts to consider numerous factors in determining whether a conservator should be appointed, including the abilities and preferences of the respondent, evidence of his/her life style and cultural background, and whether there exist alternate legal tools or supports that obviate the need for a conservator.[13]

The new standard for appointment requires that the court find:

that the respondent is incapable;

that his/her financial affairs are not being adequately managed or that he/she is not being adequately cared for; and

Courts are now prohibited from appointing a conservator of the estate if the respondent's affairs are being adequately managed by other means including, but not limited to, a power of attorney or advance health care directive.[15]

Even where a court concludes, based on clear and convincing evidence of needs, that appointment of a conservator is necessary, it is required to make a limited appointment and to review the conservatorship ongoing with an emphasis on authorizing only those duties that clear and convincing evidence has shown to be necessary. The basis for such assignment must be that each such duty and authority restricts the decision-making authority of the ward only to the extent necessary to provide for his or her personal or property management needs.[16] Important examples of this include provisions that state that conservators of the person may not, without court authorization:

revoke the conserved person's advance health care directives unless authorized to do so by a court of competent jurisdiction;[17]

terminate a tenancy or lease, sell or dispose of real property or furnishings or change the conserved person's residency;[18] or

place the conserved person in an institution, which is defined as a skilled nursing facility, an intermediate care facility, a residential care home, an extended care facility, a rest home or a rehabilitation hospital.[19]

The amended law also provides that a conserved person retains all rights that are not expressly assigned to the conservator.[20] Throughout, the amended law emphasizes use of the “least restrictive means of invention” and the obligation of the conservator of the person to take into consideration the wishes and preferences of the conserved person.

Finally, the amendments contain major changes concerning appeals. In contrast to historical de novo review, the Connecticut Superior Court must now limit its review to the record created at the probate court level [21] , and must affirm the decision of that court unless it finds specific circumstances, such as legal error, to have occurred, or that the decision is contrary to the evidence presented.[22] The amended law also provides that an individual may apply for and is entitled to the benefit of a writ of habeas corpus even if s/he has not exhausted other remedies.[23]

State Adult Guardianship Legislation at a Glance: 2007

State

Bill

Provisions

Arizona

SB 1100

Includes registered nurse practitioners in list of professionals for evaluation of respondents.

Arkansas

SB 820

Creates an Office of Public Guardian for Adults within the Division of Aging and Adult Services

Arkansas

HB 1305

Concerns definition of incapacity

California

AB 1727

Makes substantive and clarifying amendments to the 2006 Omnibus Act.

California

SB 340

Permits criminal background checks on conservators.

Connecticut

SB 1439

Makes substantial revisions in procedures for appointment of guardians (called “conservators”), for appeal; and in their powers.

Changes procedure for listing and criminal background checks of guardians.

Texas

SB 505

Allows Guardianship Certification Board to look at criminal history information of applicants for certification.

Texas

SB 507

Entitles Guardianship Certification Board members to reimbursement for travel expenses.

Texas

HB 342

Addresses multi-state guardianship proceedings.

Texas

HB 585

Addresses probate court jurisdiction in guardianship proceedings involving a disabled adult for whom another court has jurisdiction in certain cases; and addresses appointment of conservator of disabled young adult as guardian.

Texas

HB 417

Concerns termination of appointment of guardian ad litem & attorney ad litem; right to vote and drive; criminal background checks of guardians; investment plans by guardians of the estate; more.

Texas

HB 1709

Concerns order for new bond.

Texas

HB 617

Concerns removal of ineligible guardians. /\

Virginia

HB 3177

Concerns sale of real estate by a conservator.

Washington

SB 5320

Creates an Office of Public Guardianship within the Administrative Office of the Courts.

24 Teaster, P., Wood, E., Karp, N, Lawrence, S., Schmidt, W. & Mendiondo, M., Wards of the State: A National Study of Public Guardianship, University of Kentucky & American Bar Association Commission on Law and Aging * (2005); Teaster, P., Wood, E., Schmidt, W. & Lawrence, S., Public Guardianship After 25 Years: In the Best Interest of Incapacitated People?* University of Kentucky and American Bar Association Commission on Law and Aging (2008).

26Ark.Code Ann. §8-65-701, effective if contingency in Acts 2007, No. 862, §5 is met. The contingency is that “(1)The Director of the Division of Aging and Adult Services of the department of Health and Human Services determines that adequate appropriation, funding, and positions are available to carry out a public guardianship program for adults; and (2) The director appoints an employee of the Division of Aging and Adult Services to serve as Public Guardian for Adults.”

27Symposium Facilitating Voting As People Age: Implications of Cognitive Impairment, 38(4) McGeorge Law Review, University of the Pacific (2007).

28 Hurme, S. & Appelbaum, P., “Defining and Assessing Capcity to Vote: The Effect of Mental Impairment on the Rights of Voters,” 38(4) McGeorge Law Review 931, at 956 (2007).